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How to Name a Business, Legally

Every business needs a name. To tell customers what it is. To differentiate it from competition. And to identify it legally. Just like every person needs a name.

And, just like naming a person, naming a business takes time, thought, effort, and communication. You can’t just go register a domain name on Go Daddy and be done with it. Well, you can, but be ready to suffer the consequences.

Legal consequences. Business names have legal consequences. State and federal trademark laws prohibit your business name being confusingly similar to a trademark. 

Books. But, let’s start at the beginning. How do you think of a name for your business. There are lots of books of names for newborn babies. Are there books for newborn businesses? It turns out there are. The 22 Immutable Laws of Branding by Al Ries and Laura Ries and How to Launch a Brand by Fabian Geyrhalter are just two on Amazon.

Federal Trademarks. Let’s say you apply your new marketing skills and come up with a list of 5 to 10 possible names for your business. What’s the next step? I suggest heading over to the USPTO and doing a search of federal trademark registrations. And if any of your possible names match any word, and I mean any word, of a trademark there, then strike it off your list of possible names. Because it’s just not worth the possible consequences. Unless you have lots of money backing you up and you like to meet conflict head on.

State Trademarks and Entities. Trademark law is complicated by the fact that not only does the US Government register trademarks, but all 50 states also register them. You can engage a trademarks lawyer or search firm to search all 50 states, but before you take that step, you can search your own state databases of trademark and entity names. For example, in Florida, you can search for names of existing trademarks, corporations, LLCs, partnerships, and fictitious names by accessing databases on the Florida Division of Corporations website. Most states have similar databases.

Google. Finally, you’ll want to do a Google search of your possible names to be sure there are no businesses using a confusingly similar name. It turns out that another complication of trademark law is that trademarks don’t need to be registered. It’s true that registering a trademark gives additional rights to its owner, but common law trademark rights exist in most businesses in most states without registration. So, a Google search might identify more business names to avoid.

Ready to Hire a Lawyer. After you’ve whittled your list of possible business names down to those you think would not be confusingly similar to a trademark, it’s time to hire a lawyer to help you set up your business, legally. Because, believe it or not, there’s more to a business than its name.

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Surveys: Who Needs Them, Anyway?

Everyone who deals with real estate in Florida needs a survey. Whether buying, selling, leasing, constructing, lending, or just plain owning real estate, you need a survey. Here’s why:

• Buyer: You’re buying real estate in Florida and the broker says you don’t need a survey unless the lender requires it. Is that true? Probably not. Why? Because the survey is the only thing that ties your deed’s legal description to the actual land you are buying. You can walk all over your newly-purchased real estate and still not really know where your property begins and your neighbor’s ends. That is, unless you have a surveyor prepare a current survey map and stake the boundaries on the land itself. (The survey can also show encroachments on the boundary lines, as well as easements and features, such as buildings, structures, streets, driveways, etc., but you might have to ask for that.)

• Seller: The same thing applies to the real estate seller. You need to know that the deed you sign at the closing has the same legal description as the survey and that the survey map and stakes in the ground are for the property you are selling and not for some nearby land.

• Landlord and Tenant: The same thing applies to the real estate landlord and tenant because a lease is like a deed in that it is an interest in real estate. You need to know that the lease you sign has the same legal description as the survey and that the survey map and stakes in the ground are for the property you are leasing and not for some nearby land.

• Contractor: Every contractor and subcontractor who improves real estate in Florida needs a survey because they should put the legal description in a notice to owner, and possibly a claim of lien, in order to comply with the Florida Construction Lien Law, and the survey is what ties the legal description to the actual land they are working on. Otherwise, they might lose their lien rights.

• Lender: Lenders usually require surveys as part of their mortgage loan process for the same reason. It is what ties the legal description on the mortgage to the actual land.

• Owner: The owner of Florida real estate also needs a survey for the same reasons. And a survey is also a place to keep a record of improvements above ground and underground. When you have a gas line run underground to supply your new tankless natural gas water heater and emergency backup generator, you need a place to write down its location so that future workers do not cut into it. When you add a swimming pool in your backyard, you need a survey to determine the setback from the property lines. Your survey is what ties your legal ownership in the land to your improvements on the land.

So, as it turns out, everyone dealing with real estate in Florida needs a survey. Who knew?

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How Long Does Florida Probate Take?

As a Florida lawyer, I’m often asked how long does it take to probate in Florida? The answer is four months, as long as everything goes smoothly. Here’s why:

Three basic things take place during probate: assets are located; creditors are paid; and what’s left is distributed to beneficiaries.

If the decedent was organized, then locating assets is very quick and simple and can take just a few days to a few weeks. If the decedent had a lot of assets, then this can take longer. If probate takes longer than four months, it’s usually because of the extent or complexity of assets.

Before paying creditors, they have to be found. This is done by publishing a notice to creditors in the legal newspaper and giving them three months to file a claim. In addition, a copy of the notice to creditors is sent to every possible person who might be a creditor.

At the end of the three-month creditor claims period, the creditors are known and paid, if all goes smoothly. If this takes longer than three months, then it’s usually due to a disputed claim or a problem with taxes.

Finally, after the three-month creditor claims period expires and the creditors are paid, the remaining estate can be distributed to beneficiaries. If it takes longer, then it is usually because there is a will contest or other dispute.

So, as you can see, Florida has a very streamlined probate process that can be completed in just four months from start to finish, if all goes smoothly. Sometimes, things don’t go smoothly due to problems arising. Anticipating and avoiding problems is what lawyers try to do in estate planning before probate.

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How Many Kinds of Deeds Are There in Florida?

When you buy or sell real estate in Florida, it’s important to think about the kind of deed that will transfer the real estate.  There are many kinds of deeds in Florida. Here are a few of them:

  • Statutory Warranty Deed. If you are the buyer, you generally want the seller to sign a statutory warranty deed because it means the seller makes various warranties to you. If the title fails, then you could sue the seller for breach of warranty. This is the type of deed that is usually prepared by lawyers and title insurance agents for closings in Florida. It is the type of deed specified in the form contracts issued by the Florida Realtors and The Florida Bar. But, there is no law that says it must be used.
  • Special Warranty Deed. On the other hand, if you are the seller, you can limit your warranties by signing a special warranty deed instead of a statutory warranty deed.
  • Fee Simple Deed. Even better, if you are the seller, you could sign a fee simple deed because it contains no warranties at all, but it still purports to convey fee simple title. 
  • Trustee’s Deed. If you are a trustee, personal representative or guardian, then you want to sign a special type of deed for that capacity, which is similar to a fee simple deed and gives no warranties because it would obligate the trust, estate or guardianship beyond the term of your office.
  • Quit Claim Deed. If you are not sure whether you really own the property, then you want to sign a quit claim deed. (Non-lawyers sometimes mistakenly call this a “quick” claim deed, but the correct name is quit claim deed.) Doing this means you quit claim your interest to the grantee, meaning that you only convey to the grantee whatever interest you have in the property. If you have no interest in the property, then you are conveying nothing.

The key is to specify the type of deed in the contract for sale, and to have your attorney read both the contract and the deed before you sign them. And it’s imperative that a title search and title insurance be obtained from a licensed title insurance company before you sign a deed.

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Does the Florida Real Estate Seller Need a Lawyer?

Whether selling a home or an office building, the seller of Florida real estate needs a lawyer.  Why?  Because the seller has two goals: get paid and avoid litigation. The lawyer’s job is to help the seller get paid by preparing and negotiating the listing and sale contracts, helping the seller through the due diligence inspection period, and preparing or reviewing closing documents.  The real estate seller’s lawyer can do the following:

Clear Contract. Litigation is less likely with a clear contract, so the lawyer can assist in preparing and negotiating a clear contract for sale of the real estate.  Sometimes this is done with a standard form, such as the FR/Bar form issued by The Florida Bar and Florida Realtors or the FAR forms issued by the Florida Realtors. The lawyer often prepares addenda to these standard forms to clarify aspects of the transaction.  Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case or that are more favorable to the buyer.  Unlike others parts of the real estate sales team, lawyers are trained in the art and use of legal words and the drafting and interpretation of contracts.

Deadline Follow-up. All contracts for the sale of real estate should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid litigation, it is important to comply with these deadlines. The lawyer can assist the seller in scheduling contract deadlines in order to achieve the goals of getting paid and avoiding litigation.

Limit Liability in Contract, Deed and Closing Documents. Legal documents often contain representations and warranties that are binding upon sellers after the closing in a way that may obligate the sellers to pay damages to the buyers even years after the closing. Since the seller’s goals are to get paid (and stay paid) and avoid litigation, it is often important to limit the seller’s representations and warranties in contracts. Lawyers know which warranties and representations are standard and which are not, which can be negotiated out and which must stay.

Cashier’s Check or Wire Transfer at Closing. The seller should accept only a cashier’s check or a wire transfer of net proceeds at the closing. If the seller accepts a closing agent’s escrow check, then the seller accepts the risk if the check fails. While most closing agencies are reputable, there is no way to tell whether its escrow check will be honored by your bank.  If it is not, the seller loses and the buyer gets to keep the deed. So, it is essential that the seller only accept a cashier’s check or wire transfer at closing.

Therefore, the seller of Florida real estate, whether it is residential or commercial, should always engage a Florida lawyer to assist in the transaction.

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Does the Florida Real Estate Buyer Need a Lawyer?

When buying real estate in Florida, the buyer needs a lawyer. Why? Because real estate is complicated. There are many pitfalls. And there is usually no one else to watch out for the buyer’s legal interest. Brokers and closing agents usually aren’t lawyers. They are usually transaction agents who don’t represent either side. Only lawyers represent one side or the other. That’s because ethical conflict rules prohibit lawyers from representing both sides of a real estate sale. So, Florida real estate buyers need lawyers to provide legal advice and represent their side of the deal.

The lawyer can help the buyer prepare and negotiate a purchase contract, then advise the buyer through the buyer’s due diligence inspection period, and then read the deed, title insurance commitment, and other closing documents on behalf of the buyer. 

Specifically, the real estate buyer’s lawyer can do the following:

Due Diligence Period. The buyer’s lawyer can assist in preparing and negotiating a contract for purchase of the real property that includes a due diligence inspection period with broad wording to allow the buyer to check for obvious (patent) and non-obvious (latent) defects.  These might be in the building, land, air or water.  They could be environmental, structural, mechanical, electrical, or otherwise. The buyer might remember the Latin saying, Caveat Emptor, which means “Let the buyer beware.”  This meant that the seller was not obligated to tell the buyer about defects known by the seller.  While this ancient rule of law has changed with regard to residential real estate, it still applies in Florida to commercial real estate, so it is even more important for commercial real property buyers to do their due diligence inspections.  However, it is still important for residential buyers to inspect for defects because sellers are not obligated to tell about defects that sellers are not aware of so the buyer might discover something unknown to the seller.  In addition, if the residential seller fails to disclose a known defect and is liable to the buyer for not doing so, the seller might not have enough money left to pay the buyer damages for the nondisclosure. If the buyer does not discover the defect until after the closing, then it is too late to back out of the transaction without expensive litigation.

Clear Contract. The buyer’s lawyer can assist in drafting a clear contract that gives the buyer what the buyer expects to buy in the transaction. Sometimes this is done with a standard form such as the FR/Bar forms issued by the Florida Bar and Florida Realtors or the FAR forms issued by the Florida Realtors. The lawyer often prepares addenda to these standard forms to clarify aspects of the transaction on behalf of the buyer that might otherwise be unfavorable to the buyer. Sometimes, however, the lawyer prepares a form specifically for the particular transaction rather than using a standard form that has many provisions that are not applicable to the particular case. Unlike real estate brokers, lawyers are trained in the art and use of words and the drafting and interpretation of contracts.

Deadline Follow-up. All contracts for the purchase of real property should include deadlines for such matters as inspections, financing, title insurance, surveys, closing, etc. To avoid breaching the contract, it is important to comply with these deadlines. The lawyer can assist the buyer in scheduling contract deadlines.

Read Closing Documents and Include Protections. Legal documents can be written to include representations and warranties that are binding upon sellers after the closing in a way that may obligate them to pay damages to the buyer even years after the closing, but sellers try to avoid this wording so that any discovered defects are the buyer’s sole problems. If the buyer does not have an attorney the buyer may not have the benefit of including this wording in the contract, deed and other documents.  Since the seller’s only goals are to get paid (and stay paid) and avoid litigation, it is important to include seller’s representations and warranties in contracts and deeds. Lawyers know which warranties and representations are standard and which are not, which can be negotiated in and which are more difficult to include.

Cost-Benefit of Legal Advice. The benefits of having a lawyer come at a cost: legal fees. Buyers who do not have lawyers do not pay legal fees; at least, not unless or until a breach or defect is discovered. Legal fees in litigation are expensive because it is fueled by opposing parties with opposing claims and positions. Legal fees paid to a buyer’s lawyer to advise the buyer before signing a contract to purchase and before closing on the contract are much less than legal fees in litigation. There is no crystal ball to determine in advance whether a particular deal will result in litigation so it is best to hire a lawyer to assist in assessing and minimizing the risks of the purchase transaction to the extent possible.

Therefore, the buyer of Florida real estate, whether it is residential or commercial, should always engage a Florida lawyer to assist in the transaction. Otherwise, there is really no one on the buyer’s legal side.